从职权启动到诉权驱动——论证人出庭模式之转变

From Controlled by Judging Power to Actuated by the Right of Action——On the Transformation of Model of Witnesses' Appearance in Court

我国刑事证人出庭模式是一种职权启动的模式:裁判权决定证人出庭标准和范围,通知证人出庭主要由裁判权主导,裁判权在采信证言笔录上不受限制。西方主要国家确立的是诉权驱动的证人出庭模式:裁判权在证人出庭范围的确定上没有决定权,诉权可以选择自行通知或申请法院通知证人出庭,诉权合意可以赋予证言笔录以证据能力。职权启动模式以效益、结果为价值导向,诉权驱动模式以公正、过程为价值基础。职权启动模式中,诉权无法充分行使处分权,无法有效制约裁判权的行使,无法解决因法院审判惰性导致的证人不出庭问题。从长远来看,证人出庭模式应当从职权启动逐步走向诉权驱动。短期内,在我国职权启动模式难以立刻改变的情况下,应当构建最低限度的诉权行使和诉权表达机制。

In Chinese criminal trial,the model of witnesses ＇appearance in court is kind of model controlled by judging power： the judging power decides the standard and range of witnesses＇ appearance in court;the courts inform the witnesses of the Appearance in court; recorded oral testimonies are admitted by judges without restriction. In western countries the model of witnesses＇ appearance in court is kind of model actuated by the right of action： the judge cannot have a discretionary power on the standard and range of witnesses＇ appearance in court; the right of action can inform a witness independently or apply to the court for doing this;the admissibility of recorded oral testimonies are admitted when consensus is reached by both parties. While the values of the model controlled by judging power are efficiency and results oriented,the model actuated by the right of action is based on procedural justice. In the model controlled by judging power,the right of action cannot fully exercise its procedural disposition or restrict jurisdiction,and cannot solve the problem of witnesses＇ absence caused by the judicial inertia. In the long run,the model of witnesses＇ appearance in court should transform from controlled by judging power to actuated by the right of action. In the short run,we should establish minimal mechanism of the right of action in the model controlled by jurisdiction.